STATE OF NEW YORK SUPREME COURT ORIGINAL ALBANY COUNTY In the Matter of the Application of PHYSICIANS COMMITTEE FOR, RESPONSIBLE MEDICINE, Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules -against- MICHAEL F. HOGAN, as Commissioner of the New York State Office of Mental Health, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH, Respondents. Decision, Order & Judgment Index No. 439-10 (RJL01-10-ST91114) APPEARANCES: EGERT AND TRAKINSKI Attorneys for Petitioner (Amy Trakinski and Le onard Egert, of counsel) 165 West 91" Street, #16B ‘New York, New York 10024 “ANDREW M. CUOMO, ATTORNEY GENERAL Attorney for Respondents (David L. Fruchter, of counsel) ‘The Capitol Albany, New York 12224Hon, Richard M. Platkin, A.J.S.C. Physicians Committee for Responsible Medicine (“PCRM”) brings this special proceeding pursuant to CPLR article 78, challenging the denial of a Freedom of Information Law (“FOIL”) request submitted to respondent New York State Office of Mental Health (“OMI”) for records pertaining to the research on animals conducted by three employees of the New York State Psychiatric Institute (“NYSPT’). BACKGROUND PCRM alleges that it is a not-for-profit organization with more than 120,000 members and supporters that seeks to educate and inform the public on issues pertaining to the use of animals in research and education. NYSPIis a hospital established within OMH “for the care, treatment and rehabilitation of jience and skills required for the care, the mentally disabled and for research and teaching in the s ‘treatment and rehabilitation of such mentally disabled” (Mental Hygiene Law § 7.17 [b]).. On June 5, 2009, PCRM submitted a FOIL request to OMH seeking “public records from January 1, 2000 through the present, relating to the research of Drs. Suzette M. Evans, Richard W. Poltin and/or Sarah H Lisanby” (collectively “the subject researchers”). This request broadly sought, among other things: research protocols; protocol revision forms; annual reviews of research; transcripts and meeting minutes; investigation notes and/or reports, including non- compliance complaints; communications regarding non-compliance; all grant applications regarding animal research; all progress reports involving animal research; all closeout reports involving animal research; and all communications between NYSPI and the United States Department of Agriculture regarding the work of the three named researchers.‘On September 17, 2009, OMH provided PCRM with 27 pages of responsive records. However, portions of these records had been redacted on the basis of the FOIL exemptions for life or safety (hereinafter “life/safety”) and personal privacy. OMH denied access to other responsive records based upon the same FOIL exemptions, as well as the exemptions for trade secrets and deliberative materials. By letter dated October 27, 2009, the agency's FOIL Appeals Officer, John B. Carroll, granted PCRM’s administrative appeal in part and denied it in part. The Appeals Officer sustained the agency’s reliance on the FOIL exemptions for life/safety, personal privacy and deliberative materials, but concluded that the Records Access Officer had failed to follow the statutory procedures governing access to records submitted in confidence by a commercial, enterprise. Accordingly, PCRM’s appeal was granted to the limited extent of directing the Records Access Officer to follow the procedures of Public Officers Law (“POL”) § 89 (5) with respect to such records and denied in all other respects. On January 21, 2010, PCRM commenced this special proceeding. As to the alleged proprietary information submitted in confidence to OMH, the Records Access Officer advised PCRM on April 5, 2010 that the commercial enterprise’s “request to maintain the confidentiality of proprictary technical information on the grounds that it is comprised of trade secrets is granted; accordingly, your request .. . is denied.” PCRM’s administrative appeal of this determination was denied on April 26, 2010. PCRM then filed an Amended Verified Petition on May 18, 2010 with the consent of respondents. In its amended petition, PCRM challenges OMH’s October 27, 2009 and April 26, 2010 denials of access to responsive records, contending that OMH failed to describe thewithheld materials or fully explain its reasons for the redactions and withholding of responsive records. PCRM further argues that OMH cannot sustain its burden of demonstrating the applicability of the FOIL exemptions for life/safety, personal privacy, trade secrets and deliberative materials. While defending its invocation of the aforementioned FOIL exemptions, OMH offers the following statement in its Memorandum of Law: ‘OMB has re-evaluated this matter, and has now offered to provide PCRM with redacted versions of many of the documents which previously were withheld. To assist the Court in evaluating OME’ assertion of the FOIL exemptions upon which the redactions are based, OMH has submitted to this Court, for in camera review only, a set of documents that contains a representative sample of each of some of the major categories of documents requested by PCRM. As set forth in the May 28, 2010 affirmation of Dr. Jeffrey Lieberman, the Executive Director of [NYSPI], each of these sample documents is typical of the other requested documents that fall into the same category. In its reply papers, PCRM claims that the factual record compiled by OMH is insufficient for the agency to meet its burden of demonstrating that the withheld records are exempt from disclosure. PCRM also asserts that OMH has inappropriately sought in camera review, contending that the agency first was obliged to prepare a log identifying and describing the withheld records, the specific exemptions relied upon, and the particular factual justification giving rise to each claim of exemption. At oral argument, which was held on October 1, 2010, the Court expressed concern regarding the procedural posture of this application. In responding to PCRM’s FOIL request, OMH denied access to all but 27 pages of responsive documents, whereas the agency now seeks to have the Court rule on the validity of its proposed redactions to the entire set of responsivedocuments. Generally, a court reviewing an administrative determination is limited to the record compiled by the agency during the administrative process (see Matter of Molloy v New York City Police Dept, 50 AD3d 98 [1* Dept 2008]; Matter of Rhino Assets, LLC v New York City Dept. for the Aging, SCRIE Programs, 31 AD3d 292 [1* Dept 2006}). ‘The parties responded by jointly urging the Court to rule upon the applicability of the various FOIL exemptions invoked by the agency on the basis of the evidentiary record compiled by the parties on this application and the in camera materials submitted to the Court. In this connection, PCRM withdrew its objection to the Court’s consideration of the in camera materials, and OMH stipulated to produce the documents withheld from PCRM, subject to such redactions as may be available pursuant to the Court’s ruling. The Court accepts the parties’ procedural stipulations and issues this Decision, Order & Judgment. ANALY: “Under FOIL, government records are presumptively available to the public for inspection unless subject to an exemption” (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]). This “broad standard of open disclosure” serves to “achieve maximum public access to government documents” (Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 416 [1995]). “Exemptions are narrowly construed,” and “the agency that seeks to prevent disclosure bears] the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access” (Matter of Carnevale v City of Albany, 68 AD3d 1290, 1292 [3d Dept 2009]). The Court will consider each of the FOIL, exemptions relied upon by OMH in turn.